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Microsoft's Masters: Whose Rules Does Your Media Center Play By?

While its customers are still puzzling over why Vista Media Center
is suddenly refusing to record over-the-air NBC digital TV, Microsoft has come out
with an astounding admission, courtesy of Greg Sandoval at CNet News:

"Microsoft included technologies in Windows based on rules set forth by the (Federal Communications Commission)," a Microsoft spokeswoman wrote in an e-mail to CNET News.com. "As part of these regulations, Windows Media Center fully adheres to the flags used by broadcasters and content owners to determine how their content is distributed and consumed."

Microsoft's statement shines light on how Microsoft expects Media Center to
behave. If this is the company's explanation for what users are seeing when attempting
to record digital NBC broadcasts over-the-air, then Microsoft is saying Vista
obeys the broadcast flag: a requirement rejected by courts and Congress.

The FCC regulation that Microsoft's spokesperson says
it follows is not in force - that is, there is no legal requirement
for them to follow these rules. They were rejected by the D.C. Circuit of Appeals
in a case brought forward by librarians, public interest and consumer groups
(including EFF and Public Knowledge). Microsoft is not complying with the FCC:
it is complying with the "broadcasters and content owners" who so dearly wanted
the flag in place, and failed to manage it.

Even if Microsoft somehow believes the FCC regulations still apply, they are going far beyond mere compliance. Here's the FCC's
href="http://w2.eff.org/IP/broadcastflag/20031104_fcc_order.pdf">rulemaking on
the flag:

In light of our decision to adopt a redistribution control
scheme and to avoid any confusion, we wish to reemphasize that our action
herein in no way limits or prevents consumers from making copies of digital
broadcast television content.

...

[The aim of the broadcast flag] will not ... interfere with or preclude
consumers from copying broadcast programming and using or redistributing it
within the home or similar personal environment as consistent with copyright
law.

Here is Microsoft's interpretation of an over-the-air flag:

Note how Vista forbids recording this broadcast program at all: exactly what the FCC said the flag should not do. (The
broadcast flag requirements allowed you to record TV, but required the recorded
material be "protected" to prevent you from redistributing it beyond approved
and locked-down devices). In Microsoft's attempt to "fully adhere', they have gone
beyond what the FCC ever asked them to do: they have agreed to what broadcast and content owners could only dream of passing by fiat.

Microsoft's attempt to cover its behavior by claiming compliance with the
FCC neither explains nor justifies the errors that their customers are
currently seeing. The company needs to spell out exactly whose rules Vista is
following, and exactly how they affect their customers computers' current and
future behavior.